This story from the Los Angeles Times was enough to stir ire in the coldest reaches of Dick Cheney’s heart.

Tamera Jo Freeman was on a Frontier Airlines flight to Denver in 2007 when her two children began to quarrel over the window shade and then spilled a Bloody Mary into her lap.

She spanked each of them on the thigh with three swats. It was a small incident, but one that in the heightened anxiety after the Sept. 11 terrorist attacks would eventually have enormous ramifications for Freeman and her children.

A flight attendant confronted Freeman, who responded by hurling a few profanities and throwing what remained of a can of tomato juice on the floor.

The incident aboard the Frontier flight ultimately led to Freeman’s arrest and conviction for a federal felony defined as an act of terrorism under the Patriot Act,

At Popehat, Ken smelled a rat.

It would be bad enough if a legally illiterate media merely misinformed the public. But the media’s illiteracy allows it to mislead and frighten the public with various legal chimeras. Case in point: a recent Los Angeles Times article suggesting that the PATRIOT Act has led to people being classified as terrorists for misbehaving on airplanes.

But journalists should be able to separate results of post-9/11 laws from results of previously prevailing legal norms . In its article “In-Flight Confrontations Can Lead To Charges Defined As Terrorism,” the Los Angeles Times utterly fails to make that distinction. In fact, it affirmatively obscures that distinction.

Ken proceeds to parse the Times story, beginning with the claim that

At least 200 passengers have been convicted of felonies under the Patriot Act, often for behavior involving raised voices and profanity. Some experts say airlines are misusing the law.

After stating that this is “substantially misleading,” and then launching into a discussion of the allegations, Ken returns to the Patriot Act angle and states:

But this — like the article’s caption suggesting that people are being convicted “under the PATRIOT Act” — is demonstrably misleading. Ms. Freeman’s indictment charged her under two statutes: Interference with a flight attendant in violation of 49 U.S.C. section 46504 and assault within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. section 113(a)(5). She was allowed to plead guilty to only the interference charge. The PATRIOT Act only changed one rather minor aspect of the interference statute:

2001 Amendments. Pub.L. 107-56, § 811(i), inserted “or attempts or conspires to do such an act,” before “shall be fined”.

In other words, the PATRIOT Act made it illegal to attempt to do or conspire to do the things already prohibited by the statute.

Two points worthy of note here.  The first is that the USA Patriot Act (note that the name is an acronym, so you have to include the USA part in front of the Patriot part lest be condemned for inexactitude) in many of its prolix and unrelated parts took existing laws, beefed them up, eliminated aspect that might be seen as a hindrance to law enforcement, and did so by aggregating them under the claim of “terrorism”.  In other words, if you can pass a law by justifying it as vital in the war on terrorism, it doesn’t seem too much of a stretch to say that people prosecuted under that law, or a penumbra of it, could be reasonably called a “terrorist”. 

Second, prior to enactment of the USA Patriot Act, flight crews rarely sought law enforcement involvement in matters that didn’t pose a serious threat to safety of the plane, passengers and crew.  It was bad for business (and airlines are, first and foremost, businesses) and stewardesses, later to be known as flight attendants, were not law enforcers.  After 9/11, there was a seismic shift in perspective, where flight crews were expected, no demanded, to ride herd over the mile high club.  Everything from handguns in the cockpit to tasers in the coffee carts was all the rage.  Then, and only then, did flight attendants feel empowered to play Sky Chief and stick their nose into every wrong in the air.  Is this attributable to 9/11 and the USA Patriot Act?  You betcha.

As to the factual allegations, Ken went to Pacer, which he correctly notes the reporter could have done as well (though the 8 cents a page may be more than newspapers can afford these days), to compare the affidavits and plea agreement to the “facts” as set forth in the Times article.

The article’s description of her conduct is somewhat limited, and helps support the article’s theme of a hapless individual who as a result of losing her cool on a bad day gets caught in a web of post-9/11 paranoia. Fortunately, other resources are available to us — and to the journalists who wrote this story. Specifically, there’s the affidavit in support of the criminal complaint against her, available online for pennies to anyone who opens a PACER account. That affidavit shows that witnesses described Ms. Freeman’s conduct as rather more alarming.

Ken sets out the witness statements in the complaint at length, and he’s absolutely right that they sound “rather more alarming.”  But then, the affidavit was prepared by an AUSA who would be expected to artfully phrase the witnesses statements in a way that makes the mundane sound alarming. That’s part of the job.

If we take a closer look at some of the language, however, it may not be nearly as alarming as it seems. 

Tamera Freeman appeared intoxicated and violent towards her children before she boarded the flight in San Francisco.

“Appeared intoxicated and violent?”  This is conclusory and offers no clue why. If she had, why didn’t this witness say something before the flight?  Post hoc impressions often color prior observations, rendering them a facile reinterpretation of history.  Next.

During the flight, Freeman was observed by several passengers drinking additional alcohol and becoming verbally and physically abusive to her children.

The LA Times story says she cursed and swatted her children for spilling her Bloody Mary.  I see no inconsistency, despite the use of charged language, like “physically abusive.”

When denied further alcohol, Freeman threw a drink on the ground at FA Fleming. At one point, Freeman followed FA Fleming into a common area and began yelling and pointing her finger at FA Fleming. These actions by Freeman threatened FA Fleming to the point that FA Fleming moved into a defensive stance. FA Fleming talked Freeman into returning to her seat.

The story says she threw a drink on the ground and yelled at the flight attendant.  But she “pointed her finger?”  Oh my! The rest has more to do with FA Fleming’s sensitivities.  She “took a defensive stance?”  I have no clue what that means, though it conjures up a Ninja image in my mind.  Did she become a Ninja flight attendant?

Maria Aldeguer observed Freeman drinking alcohol on the flight, cursing and screaming at her children, and hitting the children with open fists on their shoulders and knees.

This statement presents one of my favorite little prosecutor tricks.  She hit the children with “open fists.”  Uh, that would be a slap, right?  Exactly as the article reported?  Calling a slap “open fists” makes it sound so much more violent, doesn’t it?

There are more statements, but each falls into the same categories of being conclusory, rhetorical and unclear or meaningless verbiage.  It’s awfully easy for a prosecutor to describe mundane events in pejorative terms and make it seem “rather more alarming.”  Perhaps it was, but I would be very reluctant to use the language of a complaint, a document whose purpose is to make ordinary acts seem criminal, as a foundation.

Ken then points turns to the plea agreement:

Moreover, even the facts that Freeman admitted to in her plea agreement (which is also available to interested citizens and competent journalists) portray a substantially more volatile situation than the mild “few profanities” described in the article. In her plea agreement, she admitted to the following facts:

On July 16, 2007, the Defendant and her two young children were passengers on Frontier flight #1 08, an airplane in flight between San Francisco, California and Denver, Colorado. During the flight, and within the special aircraft jurisdiction of the United States, passengers observed the Defendant yelling, cursing, and striking her children. One passenger reported the Defendant’s conduct to flight attendant Amy Fleming. Ms. Fleming attempted to intervene. When she contacted the Defendant, the Defendant began yelling at Ms. Fleming that she wanted another drink because hers had been spilled. Ms. Fleming refused to serve her another alcoholic drink. The Defendant continued to cause a disturbance, cursing at Ms. Fleming, telling her, “You fucking bitch, get away from me.”

Ms. Fleming asked another flight attendant to notify the Captain of the disturbance. When the Defendant got out of her seat to go to the lavatory, Ms. Fleming followed her. When the Defendant left the bathroom, she continued to curse and yell at Ms. Fleming with her hands flying and fingers pointing. Ms. Fleming felt threatened and got into a defensive stance at that point. Flight Attendant Fleming handed the Defendant a “red card” which Ms. Freeman threw back at her. Ms. Fleming then retrieved restraint tape and warned the Defendant she would physically restrain her if she hit the children again. Ms. Fleming also reseated a passenger who worked as a correctional officer across from the Defendant so that he could assist as necessary. Ms. Fleming would testify that the actions of the Defendant intimidated her and interfered with the performance of her assigned duties.

Now let’s hold on here a moment.  The content of the plea agreement is written by the AUSA and has nothing to do with reality.  It’s what the government demands the defendant concede in order to obtain the outcome of the plea.  Defendants would admit to the Lindbergh baby kidnapping if it bought them a level 6 and probation.  The allegations are irrelevant, and nobody takes them seriously.  Defendants couldn’t care less what it says, and they will sign off on anything the government writes as long as they get the deal.

Then there’s one final element of proof that Ken offers, relating to the aspect of the Times article that suggests that Mommy Freeman spent 3 months in the hoosegow because of 9/11:

That basic research also allowed me to determine why Ms. Freeman spent three months in jail. The article implies that this was a result of post-9/11 paranoia and legal overreaching. In fact, documents available to the public show that Ms. Freeman did not contest the government’s request that she be detained:

Defendant is not contesting detention. Defendant reserves the right to address detention at a later date.

Freeman was later released on bond after she filed a motion for reconsideration of detention, a motion that strongly suggests that she had not been able to secure the family support necessary after her initial arrest.

First, there is a question as to why bond was demanded by the government in this first place.  I guess Freeman was “a flight risk,” (get it?).  But it is standard operating procedure for defense lawyers to defer a detention hearing when the defendant lacks the financial ability to make bond, and when they need an opportunity to put together a bail package that might be acceptable.  This hardly suggests that Freeman was fine about being detained, and lacking information about her financial or family situation, I can’t see how anyone can jump to the conclusion that she had no “family support.”  Maybe she has no family?  Maybe they don’t have 2 nickels to rub together? 

The one thing we know to be a fact is that she was held for 3 months before copping a plea to the Lindbergh baby kidnapping.  Was this necessary for the safety of the United States of America?  I guess it might be, considering she was a “terrorist”.  Personally, I’m not worried.  If she cursed at me, threw a drink at my feet, and tried to slap my thigh, I think I could take her.

Shortly after Ken posted his expose, two other blogs jumped on the bandwagon.  First, Mark Bennett at Defending People proclaimed that Ken kicked “journalistic butt.”  Then Walter Olson at Overlawyered took note, with a special shout out to Ken Obermann.  Talk about strange bedfellows.  My respect for both Ken, Mark and Walter aside, I wasn’t ready to join the party.

While Ken may well be correct in his shredding of the Los Angeles Times story, he may also be totally wrong.  It’s impossible to say based on the available information, and indeed much of the court record upon which Ken relies has the musty, stale smell of typical, prosecutorial, one-sided, adversarial hyperbole.  I don’t blame Ken for deciding to stand on the dubious side of the road, but I’m not convinced that I’m ready to join him.

And I note that Freeman isn’t my choice for mother of the year.  She sounds pretty awful, frankly, both as mother as well as effective terrorist.  But do I want flight attendants making federal cases over crappy parenting?  No.  No I don’t. 

Update:  It seems that Patterico’s jumped on the bandwagon, as seen here and in the comment below.  A wee bit of cheerleading involved in this, bolstered by the logical fallacy of an anecdotal claim that the LA Times messed up another airline passenger story.  So the LA Times has an agenda on the subject?  Apparently, they aren’t the only one.